Citation Nr: 0313747
Decision Date: 06/24/03 Archive Date: 06/30/03
DOCKET NO. 94-21 471 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to service connection for herniated nucleus
pulposus at L5-S1 as secondary to a service connected low
back disability.
2. Entitlement to an increased (compensable) evaluation for
a low back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
James A. Frost, Counsel
INTRODUCTION
The veteran served on active duty from September 1975 to July
1976 and from January 1980 to February 1983 and from
September 1988 to July 1991.
This appeal to the Board of Veterans' Appeals (Board) arises
from a rating decision in November 1993 by the St. Louis,
Missouri, Regional Office (RO) of the Department of Veterans
Affairs (VA).
In June 1996 and November 1998, the Board remanded this case
to the RO for further development of the evidence. The case
was most recently returned to the Board in November 2002.
REMAND
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) became law. The VCAA applies to all pending
claims for VA benefits and provides that VA shall make
reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate the claimant's claim for a benefit
under a law administered by VA. The VCAA also provides that
VA shall notify the claimant of any information, and any
medical or lay evidence not previously provided to VA which
is necessary to substantiate the claim and whether VA or the
claimant is expected to obtain any such evidence. See
Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5103,
5103A (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2002); see also Quartuccio v. Principi, 16 Vet.
App. 183 (2002), Charles v. Principi, 16 Vet. App. 370
(2002).
In a letter dated December 18, 2002, the Board notified the
veteran specifically as to what evidence is needed to support
his claims under the VCAA, as contemplated under controlling
legal authority. However, in Disabled American Veterans v.
Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316
(Fed. Cir. May 1, 2003), the United States Court of Appeals
for the Federal Circuit held that 38 C.F.R. § 19.9(a)(2)(ii),
which requires the Board "to provide the notice required by
38 U.S.C. [§] 5103(a)" and that the claimant has "not less
than 30 days to respond to the notice" is invalid because it
is contrary to 38 U.S.C. § 5103(b), which provides the
claimant one year to submit evidence. As matters stand, the
record has a procedural defect in the notice required under
the VCAA which may no longer be cured by the Board.
Accordingly, the Board must remand the case to the RO in
order to satisfy VA's duty to notify the veteran.
Under the circumstances, this case is REMANDED to the RO to
notify the veteran as follows:
We have a duty to notify you and your representative,
if you have one, of any information and evidence needed
to substantiate and complete a claim for VA benefits.
Information means non-evidentiary facts, such as your
address and Social Security number or the name and
address of a medical care provider who may have
evidence pertinent to the claim. In your case,
evidence needed to substantiate your claim for
entitlement to service connection for herniated nucleus
pulposus at L5-S1 as secondary to a service connected
low back disability would be a medical opinion by a
physician who has reviewed the pertinent medical
records in your claims file that residuals of a back
injury which you sustained during active military
service caused or have aggravated a herniated nucleus
pulposus at L5-S1. Evidence needed to substantiate
your claim of entitlement to an increased (compensable)
evaluation for a low back disability would be medical
evidence tending to show you meet the criteria for the
next higher rating, which is that you have
characteristic pain on motion of your back. It is your
responsibility to submit such evidence needed to
substantiate your claims.
The RO should allow the veteran the period of time provided
by law for a response.
Following completion of these actions, the RO should review
the evidence and determine whether the veteran's claims may
now be granted. If the decision remains adverse to the
veteran, he and his representative should be provided with an
appropriate Supplemental Statement of the Case and an
opportunity to respond thereto. The case should then be
returned to the Board for further appellate consideration, if
otherwise in order. The purpose of this REMAND is to fulfill
VA's duty to notify the veteran under the VCAA. No action is
required of the veteran until he receives further notice.
In addition to evidence, the appellant has the right to
submit additional argument on the matter which the Board has
remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369
(1999).
_________________________________________________
Robert E. Sullivan
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).